And Justice For All?

Originally published January 21, 2013

Just to be perfectly clear, I’m not a lawyer. My approach is to examine what I personally consider to be misconduct based on a layman’s interpretation of the existing legal standards and nothing more. Only a legal expert (lawyer, judge, etc.) would be qualified to determine whether an illegal act or one which constitutes misconduct has actually occurred.

That said, there have been several high profile cases in the news recently which are closely connected to demands for transparency and freedom of access to information and where corruption of our judicial system appears to be in the works.

1. Julian Assange of WikiLeaks, the site which leaks information provided by whistleblowers and/or hackers from around the world. Mr. Assange has not been charged with any crime;
2. Bradley Manning, charged with providing secret information to WikiLeaks;
3. Jeremy Hammond, charges related to the Stratfor hack; and
4. Aaron Swartz, charges related to the MIT/JSTOR hack; Mr. Swartz allegedly committed suicide and the charges against him have since been withdrawn.

 The specific charges don’t really matter in this context. What matters is how each of these cases are being/were handled by the Prosecution and/or Judge involved.

Julian Assange

In between WikiLeaks first major public release of data and their second major public release of data, Mr. Assange was investigated for alleged and very minor sex “crimes”. Acts so minor that they would not be considered crimes in most other countries and which rest almost entirely on personal testimony rather than objective, verifiable evidence. Mr. Assange was interviewed while in Sweden regarding those claims, no charges were laid and Mr. Assange’s freedom to leave Sweden was not restricted.

I could get into the sheer stupidity of these particular laws which allowed this situation to occur but I’m going to leave that alone for now. Anyone who knows the specifics knows how completely idiotic this entire thing is from start to finish. All I can say is that I strongly suggest that any male visiting Sweden not make the mistake of having sex there. Seriously.

Around the time of the second major leak, while Mr. Assange was in London, UK, the Prosecutor claimed that a second interview was required. Mr. Assange agreed to the interview but wanted to remain in the UK and either conduct it through a video feed or have the Prosecutor come to the UK to conduct it.

Mr. Assange was well within his rights to make such a request and the acceptance or denial of the request was a matter of Prosecutorial discretion. That is the prosecutor could have acceded to the request but wasn’t required to by law.

The Prosecutor exercised their discretion by insisting that the interview had to be conducted in Sweden but provided no explanation as to why this was necessary.

Meanwhile, it was discovered through the Stratfor hack that a Grand Jury had met in the US and had secretly indicted Mr. Assange.

The only reasonable conclusion one can come to which might explain the Prosecutor’s refusal to accede to the reasonable accommodations requested by Julian Assange, is that Sweden has agreed to extradite him to the US to face the charges laid against him there.

Is this Prosecutorial misconduct? And on what grounds?

“Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice.” (See detailed definitions at the end of the post).

In my opinion, if Sweden is using Prosecutorial discretion as their means of trying to get Julian Assange back to Sweden on false grounds (the allegations made against him for which he hasn’t been charged) and in order to act against him by extraditing him to the US it certainly would “violate …  the ethical standards of law practice”.

In order to restore the confidence in and perception of justice of the Swedish legal system all the Swedish Prosecutor has to do is interview Assange by video from the Ecuadorian Embassy and then either charge him or close the investigation.

The misconduct here and potential for further misconduct is patently obvious if they continue to refuse this reasonable and simple solution.

Bradley Manning
(Note: At the time I wrote this, Chelsea Manning was using her birth name, Bradley and birth gender. It wasn't until much later that she requested her gender transition be recognized).

Bradley Manning, a member of the US military, was arrested and charged with allegedly leaking secret information to WikiLeaks.

He was held in what can only be described as tortuous conditions for nine months between, July 2010 and April 2011. He continues to be held without bail and awaiting trial. He was arrested in May, 2010 and his trial will begin in June, 2013 after pre-trial hearings in February, 2013 are complete. (Trial Date Correction. 2013.01.23)

In this case Prosecutorial discretion was invoked in determining the charges which, according to the defense amounted to an attempt to intimidate Mr. Manning into testifying against Julian Assange by overcharging him based on overstating the alleged harm that occurred.

According to the Prosecution it’s perfectly acceptable to exaggerate charges and keep someone in prison without bail for approximately 2 years and 7 months. It will be over 3 years by the time the case is finally heard. A final ruling on whether the case will be dismissed on the grounds that it violates Manning's right to a speedy trial will be made at the end of February. (Correction based on new information)

Are these the “ethical standards of law practice” that the US commonly adheres to or are they simply acceptable depending on who the defendant is?

Jeremy Hammond

Jeremy Hammond’s case is perhaps the clearest of all.

Mr. Hammond was charged for the Stratfor hack.

Ironically, the Trial Judge was the spouse of a Stratfor client who has apparently and to date refused to recuse herself from the case. She insists it be dealt with in court.

If this Trial Judge does not recuse herself, in my opinion, it will be a clear and obvious case of Judicial Misconduct for which she should be removed from the bench.

“The recusal of a judge may be requested:

Where he himself or his spouse has a personal interest in the dispute;”

(See detailed definitions at the end of the post).

 Aaron Swartz

Aaron Swartz is the saddest of all.

Mr. Swartz was charged with the JSTOR/MIT hack.

According to his family, Mr. Swartz was pursued by the Prosecution to such a degree that he committed suicide. Apparently this is the second Hacker this particular Prosecutor has driven to suicide.

The fact that two of this Prosecutor’s defendants met the same fate says a lot about how he handles his cases and defendants in general. And while it’s possible that this isn’t technically considered misconduct one has to wonder why it's not acceptable to do the following to witnesses and is considered misconduct:

“Threatening, badgering or tampering with witnesses;”

But it’s apparently okay to do that to the defendant? How is one an “ethical standard of law practice.” and the other not?

One of the most basic premises in law is supposed to be “presumed innocent until proven guilty” so how do we rationalize treating defendants like criminals before they’ve been convicted, or in the case of Julian Assange before he’s even been charged with anything?

“Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” --Canadian Charter of Rights and Freedoms

Definitions ------------------------------------------------------------------------

Presumption of Innocence

A legal presumption that benefits a defendant in a criminal case and which results in acquittal in the event that the prosecutor does not prove guilt beyond a reasonable doubt.

Canadian Charter of Rights and Freedoms

Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Rule of Law Definition:

That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.

Due Process Definition:

Fundamental procedural legal safeguards of which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen.

Prosecutorial Discretion:

Discretionary powers exercised by the government's prosecution service such as whether to prosecute charge recommended by police, to stay an ongoing proceeding, plea bargaining, or the taking over of a private prosecution.

Prosecutorial Misconduct:

Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice. Examples, among others, may include:

Courtroom misconduct (making improper remarks or improperly introducing evidence designed to prejudice the jury: violating rules regarding selection of the jury; or making improper closing arguments);
Hiding, destroying or tampering with evidence, case files or court records;
Failing to disclose evidence that might tend to exonerate the defendant
Threatening, badgering or tampering with witnesses;
Presenting false or misleading evidence;
Selective or vindictive prosecution
Denial of a speedy trial rights
Use of unreliable and untruthful witnesses and snitches

Judicial Misconduct

Conduct on the part of a judge that is prohibited and which could lead to a form of discipline.

.... conduct prejudicial to the effective and expeditious administration of the business of the courts, or (an inability) to discharge all the duties of office by reason of mental or physical disability.

(A) judge's conduct must be free from impropriety and the appearance of impropriety and that both his official and personal behavior be in accordance with the highest standard society can expect. The standard of conduct is higher than expected of lay people and also higher than that expected of attorneys. The ultimate standard must be conduct which constantly reaffirms fitness for the high responsibilities of judicial office, and judges must so comport themselves as to dignify the administration of justice and deserve the confidence and respect of the public.

Examples:

The use of a harsh and angry tone and demeanor,
Excessive arrogance,
Lack of impartiality,
Incompetence,
Improper political or even charitable or fund-raising activities,
Sexually harassing conduct,
Off-the-record, private communication with a litigant about a pending case,
Criminal conduct,
Conflict of interest,
An ethnic or racial slur,
Physical or mental disability,
Bankruptcy or insolvency,
Misuse of prestige of office,
Allowing cameras in the courtroom,
Receiving a bribe or gift from a litigant,
Making it public comment on a pending case or which shows prejudgment
Failure to recuse oneself in an appropriate case, and
Administrative mismanagement such as a failure to render a judgment in a reasonable amount of time.

Recusal

The recusal of a judge may be requested:

    Where he himself or his spouse has a personal interest in the dispute;

    Where he himself or his spouse is the creditor, debtor, presumed heir or donee of one of the parties;

    Where he himself or his spouse is related by blood or marriage with one of the parties or his or her spouse up to the fourth degree of kinship inclusive;

    Where there have been or have proceedings between himself or his spouse and with one of the parties or his or her spouse;

    Where he has, previously, had knowledge of the matter in the capacity of a judge or arbitrator or where the has counseled one of the parties;

    Where the judge or his spouse is entrusted of the administration of the property of one of the parties;

    Where there exists a link of subordination between the judge or his spouse and one of the parties or his or her spouse;

    Where there has been a notorious friendship or enmity between the judge and one of the parties....

"The party who wishes to recuse a judge shall have, on pain of inadmissibility, to do so as soon as he has knowledge of a ground of recusal.

"In no case may the request for recusal be made after the end of the oral arguments."

All of the above definitions are American. However, since American and Canadian law is somewhat based on British law I don’t expect the definitions to differ too greatly between countries nor have I bothered to check.

These definitions are intended to be nothing more than a general guide to this discussion.

Our New Canada #StopBillC51

In 1933, Hitler established various policies both before and after he took absolute power. Some were:
1. Censorship
2. Gun Control
3. A Bill virtually identical to C-51 (as per Rocco Galati, Constitutional Lawyer)
4. A Bill virtually identical to the Barbaric Practices Act called the Malicious Practices Act
5. The only people considered German were those the Nazis deemed 'genetically' pure germans and German Citizenship was restricted to them.

The REAL issues facing Canadians today are C-51, C-24, the Barbaric Practices Act, the Border Security Act, (just to name a FEW) not the manufactured issues fabricated by MSM, based on flawed logic and falsified statistics like gun control, anti-smoking bigotry, anti-male bigotry, ETC.

And note, that these Bills recently passed in Canada make most of the crimes committed in this book LEGAL!

From the Shadows: Persecution Games, a fictionalized memoir by Kitty Hundal

The Day We Fight Back Against Mass Surveillance #NSA #StopSpying

Dear Kitty, Big news. Today, the Internet is uniting to fight back against mass surveillance.  The political landscape has shifted dramatically since the first Snowden leaks last June. We’re at a key moment in the battle against those who want to scoop up all your private personal information, whether it’s the NSA, or other countries’ spooks, like Britain’s GCHQ or Russia’s FSB. Will you sign onto our global petitionopposing mass, suspicionless surveillance?  It’s crafted by legal experts from around the world and lays out principles for restraint, oversight, and specificity for engaging in surveillance. Your signature will give weight to a new legal framework for policymakers that will lead to modern surveillance laws that will protect individual privacy rights, instead of trampling them. Sign now and oppose mass surveillance. You’ll be standing with over 360 activist groups from Colombia to Uganda, dozens of world experts, and thousands of your fellow Internet citizens. Please help spread the word. In addition to signing the global petition, you can share on social media using the hashtag #StopSpying. You can also help us by installing this code on your website, which will install a banner urging visitors to oppose mass spying. There are also protests, discussions, and cryptoparties being organized around the world.See if there's one in your area. Back in the USA, we're fighting for you Thanks to supporters like you, EFF has been fighting NSA surveillance in American courts. We're attacking Internet surveillance programs as illegal and unconstitutional under US law, and we're representing 22 organizations in challenging the phone records surveillance program on free speech grounds. This is bigger than just the US, though. We’ve explained to states at the UN and the Inter-American Commission on Human Rights the implications of the NSA’s spying on the privacy rights of everyone, at home and overseas. And we’re teaming up with our fellow activists around the world to make sure everyone is free from unchecked snooping, whether it’s from the United States’ dragnet spying, or your local surveillance state. Stopping the NSA from collecting emails like this, Rainey Reitman Activism Director Electronic Frontier Foundation Support our work: Donate today.

Legal Aid, Corruption, Access To Justice and Denial of Charter Rights

Justice Denied - Access To Legal Aid

It really doesn't surprise me that Canadian's Charter Rights have become so eroded. This is inevitable when those most vulnerable to having their rights violated are actively denied access to the Justice system.

I live in Ontario. A province where access to Legal Aid is so restrictive that, frankly, despite the fact that I know many social activists, many poor, I don't know a single person who has been able to benefit from receiving Legal Aid to protect their rights. 

It doesn't matter whether they're dealing with criminal charges as a result of arrests during protests or whether they're dealing with petty government bureaucrats who over-extend the rights they have to intrude into the privacy of those needing to access the social safety net; make decisions about who does and doesn't get access to the social safety net; or how they interpret the rules regarding the type of access, etc.

I can also attest to the fact that despite the fact that I have been eligible for Legal Aid at different points in my life based on income, I have never, throughout my entire lifetime, been granted access to the benefit because of these extra-legal regulations that the Provincial governments of ALL political stripes have given themselves the right to impose.

It's important to remember here that Canada is constitutionally different from the US in that we don't have inviolable rights. We aren't a republic. 

As a result, what we have is privileges that are deceptively called 'rights' which are granted to us by the state and which can (and have been) taken away from us at the drop of a hat when the state deems that wish to withdraw the granting of the privileges they've given us. (eg. War Measures Act imposed in 1970, Ontario Legislation imposed during the G8/G20 in Toronto in 2008 - both were by Liberal governments and swept under the proverbial carpet).

Any excuse to do this can (and has been) used, whether it's 'terrorism' (Bill C-41: Anti-Terrorism Act) or 'financial' (Provincial Regulations controlling access to Legal Aid) or something else. 

The Canadian Charter of Rights and Freedoms grants Canadians the following privileges:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84) 

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.  

--Canadian Charter of Rights and Freedoms

Given that these are the privileges granted to Canadians by the State.

Given that Ontario Legal Aid (and that of other provinces) restricts who can access Legal Aid based on type of case and not just income.

Given that the Province is often the party that is likely to be challenged, sued in these cases.

When the Province restricts Access to Legal Aid in any way for any reason other than income ...

Are they not violating each and every Canadians' Charter Rights and Freedoms to Access to Justice and doing so in a manner which is not only self-serving (covering their own asses) but prejudicial and harmful to the citizens of that Province?

Isn't that Corruption?

cor·rup·tion kəˈrəpSHən noun noun: corruption; plural noun: corruptions
1. dishonest or fraudulent conduct by those in power, typically involving bribery.
2. the action of making someone or something morally depraved or the state of being so.

I'm not a lawyer but it sure looks that way to me.

Apparently there are lawyers and others who agree that access is being restricted, and that it's a problem, if you read the following article written in 2007. However, note, that in 2007 things just got worse. It was bad before then too. And also note that these changes which reduced accessibility to justice occurred both at the Federal and Provincial levels which implicates ALL of the major Canadian political parties.

The Charter's challenges By: Tracey Tyler LEGAL AFFAIRS REPORTER, Toronto Star

Has Corruption become so systemic that we don't recognize it anymore, even when it slaps us in the face?

Have Canadians really become such lazy, apathetic slobs that we've stopped caring about our own Civil Rights?

If not, then why the hell aren't we metaphorically storming the barricades over this one?

And where the hell is the Canadian Civil Liberties Association?

Julian Fantino A Fascist in Sheep’s Clothing

Please note that the following comments should not be generalized to apply to all Liberals or NDPers or even Conservatives. I am talking about specific elements in the Liberal, NDP and Conservative parties only.

Our world isn’t straightforward anymore. We have a phenomenon occurring where political stripe has actually become a meaningless label.

Look at Mulcair and Fantino, for example. Both have strong Liberal connections and many policies are Liberal oriented. Today’s Liberal policies are also very conservative compared to the policies of past decades. Mulcair represents a more left Liberal type faction while leading the NDP and Fantino represents a more right Liberal type faction while being a Conservative politician.

That said, we would do well to remember that it has consistently been the Liberals and faux Liberals of the Mulcair/Fantino ilk that have thought nothing of violating and even removing the civil rights of Canadians on a whim. Has anyone forgotten the havoc Bob Rae wreaked in Ontario as leader of the NDP?  Bob Rae is now interim and likely to become leader of the Federal Liberals.

Any excuse will apparently do and these Liberal fascists, who, in most cases, have also been bought by some segment or other of the corporatocracy, have not been above fabricating those excuses and then acting on their own deceptions.

For example, in the 1960s, the FLQ was accused by the Liberal government of the day led by Pierre Elliott Trudeau of burning down barns, bombings, etc. and it was those alleged terrorist acts which led to kidnappings and at least one murder and culminated in the War Measures Act being invoked.

The War Measures Act completely suspended the civil liberties of Canadians from one end of the country to the other allowing the state to arrest and hold anyone on any grounds for any length of time without any legal recourse or protections under the law.

In Canada in October of 1970 we had outright fascism for a period of one month and it was all legally done. To this day our alleged Charter of Rights does not protect us from this treasonous (in my opinion) act of the Liberal Party of undermining our Democracy.

In 1976, we had the McDonald Commission of RCMP Wrongdoing Hearings which finally exposed the fact that the barn burnings and bombings were not only RCMP Red Squad inspired but RCMP Red Squad implemented.

Operation CheckMate, one of the operations which was under investigation at the time, is still secret and this portion of the Hearing has not been declassified despite the fact that declassification is supposed to occur after 20 years (1996).

Now, in the new Millenium, skanks like Fantino, through the Conservatives have reintroduced these types of operations and are trying to make them legal again by removing the few protections (like the requirement for warrants) that exist to protect us from these criminal (in my opinion) violations of the civil rights of Canadians.

In criminal (in my opinion) collusion with the Ontario Liberals draconian and fascist legislation was dusted off and applied during the G8/G20 summit where over 1000 protestors were arrested or detained illegally (in my opinion) over a period of two days. This occurred while Fantino was OPP Commissioner and also on JIG, the group that was responsible for G8/G20 security and each and every policy that was implemented at the time.

Odd how during all of the violence which occurred by a group which had been infiltrated by the OPP (by their own admission) there wasn't a single cop around.

It made for a great reason to walk in and arrest lots of people though.

And as usual, Fantino had someone else to hide behind, Chief Blair took the heat for this one.

Fantino also contributed to the draconian Omnibus Crime Bill and sat in the background while Toews took the heat for it and I don’t doubt for one moment that it was Fantino who advised Toews to pull the “we’re doing it to get the pedophiles” bullshit out of his ass.

This is and has been Fantinos MO all the way down the line.

1. Fabricate an alleged “greater good” reason that people will get behind

2. Use that alleged “greater good” reason to violate everyone’s civil rights.

3. Repeat the lie over and over again through every outlet possible including the traditional media until people start to believe it.

This is the psychology of fascism.

It’s what Hitler did to rationalize many of his fascist laws and ironically it’s being used in democracies today around the world to undermine those very democracies and bring fascism in through the back door.

We can also give due credit to the German Stasi who also developed, introduced and used many of the techniques employed by those who wish to undermine our democratic processes and buy our governments.